'Public interest' requirements to free movement of goods : How proportionate is the CJEU's proportionality assessment

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‘Public interest’ requirements to free movement

of goods: how proportionate is the CJEU’s

proportionality assessment?

Louise Miaux

Track: European Competition Law and Regulation Supervisor: Ronald van Ooik

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Abstract and Keywords

Proportionality is an omnipresent principle of European Union law that is considered fundamental by the Court of Justice of the EU as it plays a key role in its reasoning and review. The proportionality test is comprised of three distinguished elements: suitability, necessity and proportionality in the narrow sense, otherwise referred to as ‘stricto sensu’. With that in mind, we must nevertheless point out that the Court benefits from a certain margin of appreciation in the application of the proportionality principle, as it may chose which elements of the test it wants to focus on. As such, proportionality is a very flexible tool for the Court, who is able to adapt the intensity of its review pertaining to the interest at stake. This study will thereby attempt to set out an analysis of the principle of proportionality in free movement of goods cases and will thus seek to determine whether there is true proportionality in the Court’s reasoning. In other words, the focus of this research is to determine whether the CJEU is more concerned about the public interest at stake (i.e. the protection of fundamental rights, the protection of the consumer or the protection of the environment), or if the judges’ analysis pertains to the sole verification of the good use of the proportionality principle. As we will see, because of its flexible nature, the principle of proportionality’s use varies according to the public interest that is balanced against the freedom of goods.

Keywords: free movement of goods; article 36 TFEU; public interest justifications; mandatory requirements; Rule of Reason exceptions; proportionality; suitability; necessity; stricto sensu; CJEU.

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Introduction

Ever since the establishment of the European Union – hereinafter referred to as the ‘EU’ or 'Union' – Member States and the EU have had one main objective: the creation of a European internal market and its good functioning. This ambitious central policy has been motivated – amongst other things – by the undeniable fact that trade between different States can be beneficial for all parties. That being said, the true goal of the establishment of a single market aims at the merger of the different markets of every Member States into a single larger one.1 The first building block of the foundation of what we today know as the internal market dates back to 1957. Indeed, the starting premise in the law of the European Economic Community – hereinafter referred to as the ‘EEC’ – always had at thought, as its specific objective, the establishment of a ‘common market’.2_{In 1987, a new important development occurred in favour}

of the pursuit of an internal market: the European Single Act, which amended the pre-existing EEC Treaty and introduced a new article defining the internal market as ‘an area without

frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’

It thus appears evident that throughout the years and throughout new Members joining the European Union, this very same objective has remained central and fundamental. This is indeed embodied today in article 26 (1) of the Treaty on the Functioning of the European Union – hereinafter referred to as the ‘TFEU’ – which provides that the EU has a mission to ‘adopt

measures with the aim of establishing or ensuring the functioning of the internal market’.3

According to the latter article, this entails in the prosperity of an area that knows no ‘internal

frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’.4 The GASTON SCHUL case (1982)5 brought additional information to the definition given by the TFEU and reads, as previously mentioned, that ‘the concept of a common market as defined by the Court in a consistent line of decisions

1_{Chalmers D., Davies G., and Monti G., ‘European Union Law’ (Cambridge University Press, 3}rd_{edition) p. 669}

2_{Article 2 EEC Treaty} 3

Article 26 (1) TFEU (ex article 14 TEC) ‘The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.’

4

Ibid. (2) ‘The internal market shall comprise an area without internal frontiers in which the free movement of

goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.’

5_{C-15/81 Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen, Roosendal}

(hereinafter ‘Schul’), available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61981CJ0015&from=FR

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involves the elimination of all obstacles to intra-Community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those a genuine internal market.’6

It becomes apparent from what precedes that such a goal can only be reached through the prohibition of barriers to these freedoms. In other words, such an area where the four freedoms are safeguarded should entail that there are little to no restrictions on any of the free movement provisions set out by the Treaties. Indeed, to illustrate this, we can take the concrete example of the freedom of movement of goods, which requires the prohibition of all custom duties and of charges having equivalent effect between Member States, whether it is on imports or on exports.7 In addition, the TFEU also prohibits quantitative restrictions between Member States and measures having equivalent effect in its Articles 348 and 35.9

Albeit free movement is to be encouraged and protected, it must nevertheless be pointed out that the four freedoms are not absolute, which means that restrictions do exist and are either justified by Treaty derogations or by reasons of public interest, provided a legitimate ground exists of course. Concerning the former, they are known as express derogations of which the TFEU gives an exhaustive list, but as they have unfortunately never been revised, it became apparent that they were not able to fully follow and meet the needs of our ever evolving society. But this issue was remedied by the creation of public interest justifications – or judge made public interest grounds – which came to supplement the Treaties’ express derogations. As a consequence, the Court of Justice of the European Union – hereinafter referred to as the ‘CJEU’ or the ‘Court’ – allowed and developed through case law an open-ended list of different grounds to free movement restrictions known as mandatory requirements or ‘Rule of Reason exceptions’. Nevertheless, there still are limits to these justifications as there would otherwise be no true freedom of movement within the EU and its internal market if the Court could derogate at will and without boundaries to free movement provisions. Thus, Member States have to comply with certain conditions in order to justify a restriction on one of the four freedoms and it is for the

6_{Ibid., para. 33.} 7

Article 30 TFEU (ex article 25 TEC) ‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal natures.’

8

Article 34 TFEU ‘ex article 28 TEC) ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’

9

Article 35 TFEU (ex article 29 TEC) ‘Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.’

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CJEU to determine whether these conditions have been met accordingly. The one of particular interest to this research is namely the principle of proportionality.

The different requirements that have to be met were set out by the famous GEBHARD case (1995)10 where a German national lawyer was operating in Italy under the title ‘avvocato’ whilst not being registered at the local bar, as required by Italian legislation. In this request for preliminary ruling, the Court of Justice of the European Union was unambiguous: ‘national

measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it’.11 We can see from the Court’s choice of words that it has chosen to generalize its approach, thus taking a decision that goes beyond the specifics of the case, thereby intentionally broadening its scope. Evidently, the GEBHARD case is a milestone case in judge made public interest grounds as it firstly elaborated on the requirements needed for a national rule to satisfy the test of justification and secondly, it set out a more sophisticated approach to the principle of proportionality, albeit the literature of the case does not quaint – not even once - the term ‘proportionality’. Nevertheless, the proportionality review it established bears great importance in today’s reasoning of the Court.

Because of the vast and rich jurisprudence on justifications to free movement provisions, this study will aim at the analysis of freedom of goods in particular. In this field, these public interest justifications are otherwise called ‘mandatory requirements’. Along with the reasoning of the CJEU that lies behind, these particular justifications will thus be our primary focus, particularly regarding the justifications’ requirement to comply with the principle of proportionality, which entails in a cumulative test of suitability, necessity and finally stricto sensu. Indeed, the proportionality principle is particularly interesting as the Court benefits from a certain margin of appreciation in its interpretation, albeit the test is supposed to be cumulative. In other words, this means that the efficiency of the tool can be affected by the large discretion the CJEU is granted. As such, this study will seek to answer the research question of whether the proportionality assessment operated by the CJEU is indeed proportionate when allowing restrictions to the

10

C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano (hereinafter ‘Gebhard’), available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61994CJ0055&from=FR

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principle of free movement of goods in the name of public interest. To put it in under a different light, this means that the focus of this study is aimed at determining whether the Court is more concerned about the public interest at stake that is being balanced with the freedom of goods or if on the contrary, the Court’s analysis pertains to the actual verification of the good use of the proportionality principle. To effectively do so, one must first comprehend the four freedoms established by the TFEU and their different restrictions (I) in order to better apprehend the Court’s review pertaining to the proportionality principle (II).

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Chapter I – A relative prohibition of restrictions to the principle of free

movement: Treaty derogations and judge-made justifications

It is apparent from everything that precedes that the construction and prosperity of an internal market requires continuous and vigorous efforts. Evidently, the different freedoms safeguarded by the Treaties encounter limits, nevertheless they are necessary for the good functioning of the EU’s single market, the first of which are provided by the Treaties (1) and the second were developed by the Court of Justice of the EU (2).

1) Treaty derogations to free movement of goods: article 36 TFEU

These Treaty derogations, or express derogations to free movement provisions are – as their name indicates – expressly provided by the Treaties. Indeed, the TFEU provides an exhaustive list of derogations, which have been directly taken from Article XX of the GATT.12 The different grounds listed can thus be relied upon in order to justify obstacles to free movement of goods, persons, services and capital.

To expose them briefly, the TFEU allows limitations to free movement of workers as long as they are ‘justified on grounds of public policy, public security or public health’13_{and reminds}

that this freedom does not concern the area of employment in the public service.14_Concerning

the freedom of establishment and the freedom to provide services, the TFEU underlines that the concerned free movement provisions do not apply to activities connected with the exercise of official authority15 and also enables Member States to retain rules for foreign nationals ‘on

12

Article XX GATT, available at : https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf

13_{Article 45 TFEU (ex article 39 TEC) (3) ‘It shall entail the right, subject to limitations justified on grounds of}

public policy, public security or public health: (a) to accept offers or employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administration action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodies in regulations to be drawn up by the Commission.’

14

Ibid. (4) ‘The provisions of this Article shall not apply to employment in the public service.’

15_{Article 51 (ex article 45 TEC) (1) The provisions of this Chapter shall not apply, so far as any given Member}

State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.

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grounds of public policy, public security or public health’.16 Finally, the TFEU provides that the only justified restrictions Member States may apply to the freedom of movement of capital are ‘measures to prevent infringements of national law and regulations’,17 ‘procedures for the

declaration of capital movement for administrative or statistical purposes’18 and ‘measures

which are justified on the ground of public policy or public security’.19

But as our focus is retained by the particular situation of freedom of goods and the prohibition of quantitative restrictions on imports and exports and all measures having equivalent effect, we will emphasize on the scope of article 36 TFEU.

‘The provisions of Articles 34 and 35 shall not preclude prohibition or restrictions

on imports, exports or goods in transit justified on the grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means or arbitrary discrimination or a disguised restriction on trade between Member States.’20

To better understand the meaning of the article, it has to be dissected in two. Indeed, the first sentence of the provision gives an exhaustive list of the different public, non-economic interests that can be invoked to allow a restriction on free movement of goods, while the second sentence of article 36 TFEU has been interpreted by the Court to mean that the measures taking precedence has to be proportionate and not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Next to these conditions set by the Treaty itself, the Court has also developed on Member States’ right to invoke article 36 TFEU.21

16_{Article 52 (ex article 46 TEC) (1) The provisions of this Chapter and measures taken in pursuance thereof shall}

not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

17_{Article 65 TFEU (ex article 58 TEC) (1) (b) ‘to take all requisite measures to prevent infringements of national}

law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on ground of public policy or public security.’

18

Ibid.

19

Ibid.

20_{Article 36 TFEU (ex article 30 TEC)} 21

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As such, it has reminded the strict nature of the provision in COMMISSION v IRELAND (1981),22 where the CJEU held that ‘the exceptions listed therein cannot be extended to cases

other than those specifically laid down’.23 Furthermore, the Court prohibited Member States from invoking Treaty derogations to serve economic objectives in COMMISSION v ITALY (1982),24 where it held that ‘article 36 refers to matters of a non-economic nature’.25

With that in mind, it means that three conditions have to be present: if a measure is justified by one of the interests listed by article 36 TFEU, if there are no arbitrary discrimination or disguised restrictions on trade and if finally it does not serve an economic objective, Member States will be free to invoke the latter provision and will most likely see their national measure take precedence over free movement of goods.26 But as we have previously seen, the derogations provided by the Treaty have not been able to follow the interests of today’s society. Indeed, as the different grounds for justifications have been taken directly from the GATT, they naturally reflect solutions for the protection of values that were deemed of essence in the 1950s.27 As such, the CJEU had to develop case law based justifications supplementing article 36 TFEU.

2) Judge-made grounds justifying free movement restrictions: mandatory requirements

As previously exposed, the four freedoms guaranteed by the TFEU are not absolute and exceptions can be permitted as long as a legitimate ground is provided. After having analyzed the different legitimate grounds presented by the Treaties, a study of the judge-made justifications is called for. Indeed, these otherwise called ‘public interest justifications’ or ‘Rule of Reason exceptions’ are adding themselves to the list of exceptions and are thus supplementing the Treaties express derogations.

22

C-113/80 Commission v Ireland, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61980CJ0113&from=GA

23

Ibid., para. 7.

24_{C-95/81 Commission v Italy, available at:}

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61981CJ0095&from=IT

25

Ibid., para. 27.

26_{Barnard C., ‘The Substantive Law of the EU – The Four Freedoms’ (Oxford University Press, 5}th_{Edition), p. 151}

27

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As such, in the field of free movement of workers, the CJEU developed justifications otherwise called ‘pressing reasons of public interest’ in the famous BOSMAN case (1995).28 The previously discussed GEBHARD case introduced public interest justifications to free movement of establishment. As for the freedom to provide services, the CJEU also developed justifications allowing restrictions in the GOUDA case (1991).29 Finally, COMMISSION v PORTUGAL (2002)30 shows that such exceptions are also found in the field of free movement of capital.

As this study is focused on the case of free movement of goods, we will see that the exceptions listed by the Treaty are to be supplemented by mandatory requirements. Notwithstanding, they are both subject to appropriate evidence proving that the rules serve the purpose for which they are intended:31 they both must show that the measures are proportionate and are only available in the absence of harmonization.32 Nevertheless, should there be distinctions between mandatory requirements and express derogations, we can deduce from the Court’s case law that Treaty exemptions constitutes an exhaustive list that does not include other public interests than those stated – very strict interpretation – whereas the list of mandatory requirements developed by the Court is a very open one. Another difference – perhaps even a fundamental one – is that mandatory requirements, or ‘Rule of Reason exceptions’ can only be relied upon for equally applicable measures, while Treaty exceptions do not have this restriction,33_{which means they can be invoked against discriminatory measures.}

Mandatory requirements have been introduced by the CASSIS DE DIJON case (1979).34 The case arose in proceedings between France and Germany regarding a product requirement rule. France produced a fruit liqueur (Cassis de Dijon) that Germany prohibited the sale of, as

28

C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Marc Bosman and others and Union des association européennes de football (UEFA) v Jean-Marc Bosman (hereinafter ‘Bosman’) available at:

29_{C-288/89 Stichting Collectieve Antennevoorziening Gouda and others v Commissariaat voor de Media}

(hereinafter ‘Gouda’), available at:

30_{C-367/98 Commission v Portugal, available at:}

http://curia.europa.eu/juris/document/document.jsf?text=&docid=47377&pageIndex=0&doclang=EN&mode=lst&d

ir=&occ=first&part=1&cid=1254695

31_{Barnard C., ‘The Substantive Law of the EU – The Four Freedoms’ (Oxford University Press, 5}th_{Edition), p.}

172.

32_{C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (hereinafter ‘Cassis de Dijon’),}

available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61978CJ0120&from=EN para. 8.

33_{Chalmers D., Davies G., and Monti G., ‘European Union Law’ (Cambridge University Press, 2}nd_{edition) p. 877}

34

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their national law required such liqueurs to have a minimum alcohol content of 25 per cent. To support their measure, Germany held that it was justified by ‘on the one hand to the protection of

public health and on the other to the protection of the consumer against unfair commercial practices.’35 The importance of this decision pertains to its scope, as it not only developed mandatory requirements, it also established the principle of mutual recognition. Indeed, on the one hand, the CJEU created an open-ended list of public interest grounds justifying restrictions to the freedom of goods and at the same time instituted the principle by virtue of which lawfully produced and marketed goods from one Member State can in principle be sold in another one. In CASSIS DE DIJON, this meant that Germany had to recognize the French standards as equivalent to its own.36 Indeed, the Court established that certain obstacles to free movement of goods must be accepted provided they are considered necessary to satisfy ‘the effectiveness of

fiscal supervision, the protection of public health, the fairness of commercial transactions and the defense of the consumer.’37 Furthermore, it held that ‘There is therefore no valid reason why,

provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State.’38

In CASSIS DE DIJON, the Court recognized four different mandatory requirements, i.e. the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and finally the protection of the consumer. From this starting point, the Court then developed a wide range of other justifications through various and numerous cases. Today, mandatory requirements can be classified and organized in categories39 enumerated below; they will be subject to more scrutiny later in this study:

• The protection of public goods and values, comprising amongst other things the protection of the environment and of public health.

• The protection of individuals, comprising for example the protection of the consumer. • The protection of public order.

35

Ibid., para. 9.

36

Barnard C., ‘The Substantive Law of the EU – The Four Freedoms’ (Oxford University Press, 5th Edition), p. 93.

37

Ibid., para. 8 ‘Obstacles to movement within the Community resulting from disparities between the national laws

relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defense of the consumer.’

38

Ibid., para. 14.

39

Barnard C., ‘The Substantive Law of the EU – The Four Freedoms’ (Oxford University Press, 5th_{Edition), p.}

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Notwithstanding, there are limits and conditions to fulfill for the Court to broaden the scope of mandatory requirements. They are usually at the number of three and pertain to the prohibition of arbitrary discrimination – GEBHARD –, the exclusion of purely economic consideration – Commission v Italy – and the compliance with the principle of proportionality. With that in mind, we will focus on the latter condition and its assessment by the CJEU.

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Chapter II – The proportionality principle and its assessment by the CJEU

with regards to public interest justifications to free movement restrictions

After having developed the fundamental need to preserve freedom of goods while still understanding the justified exceptions to its provisions, it has become clear that certain conditions have to be met. The focus of this chapter is thus directed at the principle of proportionality, whose importance is reiterated constantly by the CJEU (1) and whether the test is, in practice, actually proportionate (2).

1) A general principle of EU law

Various authors have dedicated their work to the analysis of the key role and function of the principle of proportionality in European Union law.40 It goes without saying that this principle is omnipresent and bears a key place in the CJEU’s analysis when presented with a case. Because of its importance, it was apparent that establishing conditions for the application of the proportionality principle became necessary, as well as a system for its monitoring. Indeed, this is what the Protocol on the Application of the Principles of Subsidiarity and Proportionality41 achieved by drawing out the provisions to which EU institutions are bound by when applying the principles in question. But prior to understanding its application, one must first and foremost understand in what the proportionality principle entails. As such, article 5 (4) TEU gives us a definition and reads that ‘the content and form of Union action shall not exceed

what is necessary to achieve the objectives of the Treaties.’42 In other words, this means that the proportionality principle places limitation on Union action, but one must not forget it also does regarding Member States’ measures.43 Nevertheless, the proportionality principle addressed to Member States is different to the one addressed to EU institutions. Indeed, regarding acts of the

40

Amongst others, Tor-Inge Harbo, Wolf Sauter and Jan H. Jans.

41_{Protocol on the Application of the Principles of Subsidiarity and Proportionality, available at:}

http://www.lisbon-

treaty.org/wcm/the-lisbon-treaty/protocols-annexed-to-the-treaties/657-protocol-on-the-application-of-the-principles-of-subsidiarity-and-proportionality.html

42_{Article 5 (4) TEU (ex article 5 TEC) ‘Under the principle of proportionality, the content and form of Union}

action shall not exceed what is necessary to achieve the objective of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.’

43

Gruszczynski L. and Werner W., ‘Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation’ (Oxford University Press, 1st Edition, 2014), p. 210.

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EU, it is applied ‘to confer the necessary discretion required by EU institutions’44 while the standard of review is more intrusive for Member States’ measures as the aim of the proportionality principle ‘is rather to limit their regulatory freedom’.45

Coming back to the TEU’s definition, because it is brief and vague by nature, the proportionality principle has been established through case law. In doing so, the CJEU has been consistent in its definition and has repeatedly affirmed that the principle of proportionality is a fundamental element, which constitutes one of the general principles of EU law. Indeed, regarding free movement law, EU courts deduced the principle of proportionality from the last sentence of article 36 TFEU which reads that prohibitions or restrictions on free movement ‘shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on

trade between Member States’ thus enabling them to check whether such a measure went beyond

what was necessary.46

The principle of proportionality’s current formulation has been set out by the FEDESA case (1990)47, where the Court ruled that ‘By virtue of that principle, the lawfulness of the prohibition

of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’

The CJEU has developed a strict structure for the proportionality analysis, which takes form in a three-part cumulative test involving a test of suitability, necessity and a test of proportionality in the narrow sense, otherwise called stricto sensu.48 But as the case law of the Court has made quite evident, the CJEU does not always follow the structure it established and thus often does not go through the three-part test, to rather focus on two, or sometimes even only one of the three aforementioned elements. In other words, the CJEU often elaborates extensively on only one of

44

Ibid.

45_Ibid.

46_{Craig P., ‘EU Administrative Law’ (2012, Oxford University Press, 2}nd_{Edition) p. 617}

47

C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others (hereinafter ‘Fedesa’), para. 13, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61988CJ0331&from=EN

48

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the three elements and merely pays ‘lip service’ to the two others,49 which translates the leeway from which the Court benefits. This could be explained by the cumulative nature of the test, but as we will see, the Court’s margin of appreciation goes beyond that.

a) Suitability

The suitability test – as well as the necessity test – pertains to the efficiency of the measure and implicates a causal relationship between the measure and the aim pursued. Indeed, the suitability criterion is aimed at ‘securing the most efficient correlation between the means

and the end’.50 This means that the Court will analyse whether the measure ‘is suitable to protect

or achieve the aim or end, which serves as justification to adopt the measure or means in the first place’.51

One can deduct from the mere choice of the word ‘suitability’ that it is not a very strict test and perhaps even a lenient one.52 In the common language, suitability is defined as ‘the quality of

being right or appropriate for a particular person, purpose, or situation.’53

Pursuant to this definition, suitability is often an easy box to tick for the Court, as a measure would have to be fully inappropriate to not to fulfil this criterion and thus be considered unsuitable (which is rarely the case). One can then wonder if the feeble nature of the test is the very reason why the CJEU often operates the suitability test as a ‘manifestly inappropriate’ test in cases involving complex economic questions.54 Such was the case in the previously mentioned FEDESA (1990) ruling where the problematic at hand pertained to the lawfulness of a national measure implementing a Council Directive, which lead to the prohibition of the use of certain substances – such as hormones – on stock farming.55 The producers – applicants in the

49

Ibid. p. 23

50

Harbo T-I., ‘The Function of Proportionality Analysis in European Law’ (Brill Nijhoff, 2015) p. 23

51_Ibid. 52_{Ibid. p. 24} 53

Oxford Dictionary definition

54_{Harbo T-I., ‘The Function of Proportionality Analysis in European Law’ (Brill Nijhoff, 2015) p. 24 ‘The}

manifestly inappropriate test is applied in cases where the Court is set to assess the proportionality of measure which involve complex economic questions, typically concerning the Community’s agricultural policy (CAP).’

55_{Council Directive 81/602/EEC of 31 July 1981 concerning the prohibition of certain substances having a}

hormonal action and of any substances having a thyrostatic action, available at:

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proceedings – argued that the directive infringed the principle of proportionality in three respects, which are evidently suitability, necessity and proportionality stricto sensu. Regarding the criterion is question; the producers held that ‘the outright prohibition on the administration

of the five hormones in question is inappropriate in order to attain the declared objectives, since it is impossible to apply in practice and leads to the creation of a dangerous black market.’56

Indeed, they believed a partial prohibition – allowing for natural hormones – would be more appropriate. Nevertheless, the Court held that it was not obvious that the authorization of natural hormones would be likely to prevent the emergence of a black market and noted that such a partial authorization would require costly control measures without guaranteeing efficiency. It follows from its reasoning that the Court found that the prohibition was not a manifestly inappropriate measure57 and after determining that the necessity test was not fulfilled,58 nor the

stricto sensu59 one, it proceeded to rule that there was no infringement of the principle of proportionality.60

It follows from what precedes that the FEDESA judgement is a milestone case in EU law with regard to the principle of proportionality as it set out its current definition, but also translates the reality of the Court’s assessment as it transpires from its analysis that attention was only truly paid to the suitability element. Pursuant to this, we can see that in its reasoning, the Court favours the analysis and assessment of one aspect of the proportionality principle to the detriment of the two others. This shows us how much discretion the Court actually has when reviewing the proportionality of a measure.

b) Necessity

As previously stated, the necessity test also pertains to the efficiency of the measure and relies on the causal effect linking the measure and the aim pursued. As it name indicates, it relies on the examination of whether a measure is necessary. Often, this element of the proportionality

56_{C-331/88 Fedesa, para. 12.}

57_{Ibid., para. 15 ‘It is not obvious that the authorization of only those hormones describes as ‘natural’ would be}

likely to prevent the emergence of a black market for dangerous but less expensive substances. Moreover, according ot the Council, which was not contradicted on that point, any system of partial authorization would require costly control measures whose effectiveness would not be guaranteed. It follows that the prohibition at issue cannot be regarded as a manifestly inappropriate measure.’

58

Ibid., para. 16.

59_{Ibid., para. 17.} 60

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principle is disregarded if the condition of suitability is fulfilled, but with regard to free movement provisions infringement cases, the necessity test is the principal head of review in cases where a national measure infringes one or more of the four freedoms.61 It must be pointed out that it has been argued that the line is thin between suitability and necessity. Nevertheless, the necessity test relies on the idea that when a choice has to be made between several different measures, the least restrictive one should always be chosen. In this situation, this means that the CJEU will see whether there is any other measure available which is less restrictive to the infringed freedom in question. However, an important remark has to be made: the least restrictive alternative criterion does not only entail in the safeguard of the freedom at stake, it must also protect the aim pursued in an equally efficient manner.62 In other words, this means that any alternative unsuitable to protect the aimed interest is irrelevant.63 Furthermore, the ALPINE INVESTMENTS case (1995)64 brought additional information to the criterion as it established that ‘the fact that one Member State imposes less strict rules than another Member

State does not mean that the latter’s rules are disproportionate and hence incompatible with Community law.’65

c) Stricto sensu

This is the third subtest of the proportionality review operated by the Court, it comprises of the assessment of proportionality in the narrow sense. This means the Court will proceed to the actual balance of free movement with regards to the public aim pursued by the measure. In the FEDESA case – which has been extensively discussed above – the Court defined stricto

sensu as the requirement for the disadvantages caused by the measure to not be disproportionate

to the advantages, i.e. the aim pursued.66 Thus, – unlike the suitability and the necessity test – proportionality in the narrow sense guarantees the protection of individual interests and can be characterized as a ‘safety valve’ to their advantage and protection as the proportionality assessment will not solely be circumscribed to finding the most efficient relationship between

61_{Harbo T-I., ‘The Function of Proportionality Analysis in European Law’ (Brill Nijhoff, 2015) p. 34.} 62

Jans, Jan H., ‘Proportionality Revisited’ (Legal Issues of Economic Integration, vol. 27 (3)) p. 247.

63_Ibid.

64_{C-384/93 Alpine Investments BV v Minister van Financiën, available at:}

65_{Ibid., para. 51.} 66

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the means and the end.67 But the nature of the test and the study it entails makes the CJEU reluctant to use it.68 Indeed, Harbo69 exposes that the aforementioned test has to sides: on the one hand, it entails in the weighting of the advantages of the measure against the disadvantages it has on the interests affected, and on the other it requires that the measure may not impose an excessive burden on the individual affected.70

Evidently, we must wonder why the Court avoids using the stricto sensu test. As exposed by Harbo, the reason most likely lies behind the fact that it requires a specific point of departure: one interest is not perceived as an infringement of the other, they are weighed against each other on an equal footing.71 Because of that premise, it makes it difficult for the Court to develop on the stricto sensu test, as infringement cases rarely fulfil that precondition.

As such, this third subtest is often swallowed by the necessity test which then comprises of two facets: first the Court checks whether there are other less trade restrictive means and if there is not, it checks whether it has an excessive effect on the applicant’s interests.72

Having in mind these different elements of the proportionality assessment, it is for the competent national authorities to show that their rules fulfil that criterion.73_{Another burden they}

bear is they also have to show that the objective has been pursued in a consistent and systematic manner. Indeed, this has been developed in the CJEU’s case law on gambling74_{where the Court}

consistently ruled since GAMBELLI (2003)75 that a measure needs to pursue its objective in a

67

Harbo T-I., ‘The Function of Proportionality Analysis in European Law’ (Brill Nijhoff, 2015) p. 37.

68_{Ibid., because of the discretionary character of the stricto sensu test, p. 38, see also Jans, Jan H., ‘Proportionality}

Revisited’ (Legal Issues of Economic Integration, vol. 27 (3)) p. 248.

69_{Tor-Inge Harbo, professor at University of Agder, PhD in law from the European University Institute, Florence,}

author of ‘The Function of Proportionality Analysis in European Law’.

70

Harbo T-I., ‘The Function of Proportionality Analysis in European Law’ (Brill Nijhoff, 2015) p. 37.

71

Ibid., p. 39.

72

179.

73_{C-110/05 Commission v Italy, para. 62 ‘According to settled case-law, it is for the competent national authorities}

to show that their rules fulfil the criteria set out in paragraph 59 of the present judgment (see to that effect,

Commission v Netherlands, para. 76, Commission v Portugal, para. 39, and Case C-286/07 Commission v Luxembourg (2008) ECR-I-OOOO, para. 37.)

74

See Joined Cases C-338/04, C-359/04 and C-360/04 Placanica and Others, para. 53., Case C-169/07 Hartlauer, para. 55., C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International, para. 61.

75_{C-243/01 Gambelli and Others, para. 67, available at:}

http://curia.europa.eu/juris/showPdf.jsf?docid=48383&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&par

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consistent and systematic manner.76 Such was the case in TINTED WINDOWS (2008)77 where Portugal had prohibited the affixing of tinted film to the windows of passenger or goods vehicles.78 Indeed, they held that the ban was necessary in order to promote road safety and combat crime.79 Nevertheless, their claim was undermined as they allowed the marketing of motor vehicles fitted from the outset with tinted windows.80 This evidently showed lack of consistency in Portugal’s ban, as the allowed tinted windows would prevent external visual inspection in the same way the litigious tinted film would.

2) Is the CJEU’s proportionality analysis proportional? A case-by-case approach to the proportionality assessment of the Court

As previously exposed, the Court of Justice of the EU benefits from a large discretion when reviewing the proportionality of a measure, which can sometimes lead to ambiguous decisions. Indeed, the Court has at heart that the aim pursued has to be justified by the means employed. This means that it will always balance the different interests at stake, that is to say the protection of public interests on the one hand and the guarantee of free movement on the other. Furthermore, the Court’s discretion is also extended by the very jurisprudential nature of the proportionality assessment. Indeed, albeit it is in principle made of three different subtests, the CJEU rarely goes through all of them in practice and often prefers to focus on one or two that are namely the suitability test, but first and foremost the necessity test. Member States on the other hand have a less flexible use of the proportionality tool, which for them has a stricter interpretation. Indeed, it is not enough for them to ‘assert that a measure is warranted on

76

Ibid., para. 67 ‘First of all, whilst in Schindler, Läärä and Zenatti the Court accepted that restrictions on gaming activities may be justified by imperative requirements in the general interest, such as consumer protection and the prevention of both fraud and incitement to squander on gaming, restrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner.’

77_{C-265/06 Commission v Portugal, available at:}

78

Ibid., para. 6.

79

Ibid., para. 24.

80_{Ibid., para. 43 ‘The claim that the contested measure is necessary was further undermined when the Portuguese}

Republic admitted at the hearing that it allows the marketing on its territory of motor vehicles fitted from the outset with tinted windows within the limits laid down by Directive 92/22. Tinted windows, like the tinted film at issue, may prevent any external visual inspection of the interior of vehicles.’

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grounds of public health’, they must also ‘produce evidence to substantiate their claim’ and

show that the restriction is proportionate.81

Pertaining to judge made exceptions to free movement of goods restrictions, a milestone case is the previously discussed famous CASSIS DE DIJON case (1979), which enriched EU law on two levels. One the one hand, it instituted the principle of mutual recognition, according to which any product legally produced and marketed in one Member State must be allowed onto the market of any other one. On the other hand, it also allowed for case-law derogations to free movement restrictions by developing mandatory requirements. As previously seen, (see I. 1.) the Court held that obstacles to movement within the EU may be recognized as being necessary in order to satisfy mandatory requirements and gave a non-exhaustive list of what those can be, i.e. ‘the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial

transactions and the defence of the consumer.’82 Without making a clear reference to the principle of proportionality – as the case does not refer to the term – it transpires from the Court’s reasoning that the judges wondered whether the same objective could have been reached through a less trade-restrictive measure.After pointing out that the fixing of an alcohol limit on beverages constituted and obstacle to trade incompatible with the Treaty’s provision,83_{the Court}

emphasized on the fact thatthe aim pursued – the protection of public health – could be achieved through the simple labelling of the origin and of the alcohol content on the product,84_thereby

providing a less restrictive measure satisfying the same goal. In its proportionality analysis, the CJEU solely focused on the necessity part of the proportionality assessment and only verified whether the national measure was necessary to reach the public aim pursued and if the least restrictive alternative was chosen.

As the mandatory requirements introduced by CASSIS DE DIJON were set as an open-ended list,85 the CJEU has enriched this category of justifications supplementing treaty derogations.

81_{Craig P., ‘EU Administrative Law’ (2012, Oxford University Press, 2}nd_{Edition) p. 619}

82

C-120/78 Cassis de Dijon, para. 8.

83_{Ibid., para. 14 ‘It therefore appears that the unilateral requirement imposed by the rules of a Member State of a}

minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to trade which is incompatible with the provisions of article 30 of the Treaty (EC Treaty).’

84_{Ibid., para. 13 ‘However, this line of argument cannot be taken so far as to regard the mandatory fixing of}

minimum alcohol contents as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products.’

85

Ibid., para. 8 emphasized by the use of ‘in particular relating to’ when developing examples of mandatory

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With that in mind, one must note that the certain mandatory requirements are most commonly invoked by Member States when justifying a restriction to free movement. As such, we will discuss three of them that are increasingly popular, namely the protection of the consumer, the protection of the environment and the protection of fundamental rights.

The protection of the consumer thus comes up often before the CJEU as a ground to restrict free movement of goods. But yet again, the Court cannot allow to broad of a protection and evidently, it has set out certain conditions for that ground to be founded. This is no doubt why the notion of ‘average consumer’ was developed, by virtue of which the consumer has to be reasonably well informed and reasonably observant. Such an example can be found in GUT SPRINGENHEIDE (1998)86 where the Court held that ‘in order to determine whether the

description, trade mark or promotional description or statement in question was liable to mislead the purchaser, the Court took into account the presumed expectation of an average consumer who is reasonably well-informed and reasonably observant and circumspect, without ordering an expert’s report or commissioning a consumer research poll.’87 It thus appears the Court is retaining that presumption – like in many other MS such as France or Italy – which led to contentious matters regarding Germany who had a different approach.

As such, an interesting case to analyse is the CLINIQUE case (1994)88_{pertaining to whether the}

name of a cosmetic product was liable to mislead consumers. Indeed, German law required for all Clinique products to be sold under the name ‘Linique’ so as not to mislead consumers into thinking that the products they were purchasing were medications. This means that Germany’s national rule was aimed at the pursuit of the protection of consumers and the health of humans. The Court first reminded that ‘rules must be proportionate to the goals pursued’89 in order to assess whether the prohibition could be justified.90 The CJEU noted that because Clinique cosmetic products were exclusively sold in perfumeries and cosmetic departments of large stores, it was thus not disputed that those products were presented as cosmetic and not as

86_{C-210/96 Gut Springenheide GmbH v Oberkreisdirektor des Kreises Steinfurt, available at:}

87_{Ibid., para. 31.}

88_{C-315/92 Verband Sozialer Wettbewerb eV v Clinique Laboratoires SNC et Estée Lauder Cosmetics GmbH}

(hereinafter ‘Clinique’), available at:

89_{Ibid., para. 16.} 90

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medicinal.91 Furthermore, Clinique products are sold under that name in other Member States without misleading consumers.92 The CJEU thus found that the prohibition of the use of the Clinique name in Germany ‘does not appear necessary to satisfy the requirements of consumer

protection and the health of humans’.93 What’s particularly interesting in this judgment is that we can see that the Court did not go through an extensive proportionality analysis, as it sometimes does. On the contrary, it was satisfied by the mere observation that such a measure was not necessary since the need for it did not surface in other Member States. In the same sense, the MARS case (1995)94 also favoured the theory of the informed consumer and upheld it to refuse the ground of consumer protection in order to justify a restriction to free movement of goods. In this particular case, the Mars Inc. group increased the quantity of their bars of 10% as part of a publicity campaign and advertised it on their wrappers.95 A German Association for combatting unfair competition whished to prevent the previously mentioned ‘10%’ marking on wrappers as it contended it would mislead consumers. To support, their argument, they held that consumers would assume, on the one hand, that the increase in quantity was granted without any price increase96 and on the other, that the quantity increase is represented by the coloured part marked ‘10%’ while that marking occupies ‘considerably more than 10% of the total surface

area of the wrapping’.97_{The Court here found that ‘reasonably circumspect consumers may be} deemed to know that there is not necessarily a link between the size of publicity markings relating to an increase in a product’s quantity and the size of that increase’,98_{which means that}

once again, the Court did not exert an analysis of the proportionality of the measure and made do with deducing from the consumer’s awareness that the measure could not be justified as being necessary in order to satisfy mandatory requirements relating to consumer protection.

However, the Court is of course inclined to be less strict when faced with a consumer that cannot meet the expectations of the informed and diligent consumer and vice versa. As such, it is more

91 Ibid., para. 21. 92_Ibid. 93_{Ibid., para. 22.} 94

C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln eV v Mars GmbH (hereinafter ‘Mars’), available

at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61993CJ0470&from=EN 95 Ibid., para. 4. 96 Ibid., para. 7. 97_{Ibid., para. 8.} 98 Ibid., para. 24.

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lenient whenever a product is targeted at the ‘particularly vulnerable consumer’99 and will apply lower standards of protection to the consumer that is considered ‘particularly informed’. It would thus seem that when the mandatory requirement of consumer protection is at stake, the Court fails to assess the proportionality of the measure through its three-step process. On the contrary, it satisfies itself with the mere reminder of the need to comply with the principle of proportionality and ‘assesses’ the necessity of the measure through the notion of the average consumer.

Another interest that was not dealt with by the derogations of Article 36 TFEU is the protection of the environment. It was only ten years after CASSIS DE DIJON that it was recognized as a mandatory requirement by COMMISSION v DENMARK (1988).100 The case concerned a Danish law requiring that the marketing of all soft drinks and beers be authorized only in reusable containers, which the Danish Government held to be justified by the requirement of environmental protection.101 The Court commenced by quoting the CASSIS DE DIJON case and the need for measures to comply with the principle of proportionality and then stated its previous PROCUREUR DE LA RÉPUBLIQUE v ASSOCIATION DE DÉFENSE DES BRÛLEURS D’HUILES USAGÉES case (1985)102_{in order to recognize the protection of}

the environment as a mandatory requirement. Indeed, it had there previously held that this matter was ‘one of the Community’s essential objectives’103_{while specifying that regardless of that fact,}

measures still had to be non-discriminatory and not go beyond ‘the inevitable restrictions which

are justified by the pursuit of the objective of environment protection.’104 The Court used its previous reasoning and applied it to this case to allow certain limitations to free movement of goods,105 it thus reasoned analogically and found that ‘it must therefore be stated that the

protection of the environment is a mandatory requirement’,106 making the matter at hand an

99

See C-441/04 A-Punkt Schmuckhandels GmbH v Schmidt, available at:

100_{C-302/86 Commission v Denmark, available at:}

http://curia.europa.eu/juris/showPdf.jsf?text=&docid=95033&pageIndex=0&doclang=EN&mode=lst&dir=&occ=fir

st&part=1&cid=1071190

101_{Ibid., para. 7.} 102

C-240/83 Procureur de la République v Association de Défense des brûleurs d’huiles usagées, available at:

103

Ibid., para. 13, see also C-302/86 Commission v Denmark, para. 8.

104

Ibid., para. 15. see also C-302/86 Commission v Denmark, para. 11.

105_Ibid. 106

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undeniable ground justifying restrictions.107 Nevertheless, the CJEU did not disregard the proportionality analysis of the measure. On the contrary, the judges processed to see whether the contested rules imposed restrictions deemed necessary to the objective pursued108 and albeit it did establish that environmental protection was a mandatory requirement, it found that the measure could not be regarded as being disproportionate regarding the deposit-and-return system but still found the measure to be disproportionate because it would make importation ‘very

difficult’109 for producers as it would involve substantial additional costs.110 This means that the Court here went through the three stages of the proportionality assessment and considered the measure disproportionate on the basis it failed the stricto sensu test. Indeed, the measure was suitable and was necessary and as such did not go beyond what was necessary to protect the environment, but because of the additional costs foreign producers would bear, it deemed the Danish rule would create an excessive burden of the individuals concerned.

It thus appears that unlike for consumer protection, the public interest requirement of environmental protection is subject to more scrutiny when it comes to the analysis of proportionality. The Court even seems to go further as it here sometimes even assesses proportionality in the narrow sense, a criterion it usually chooses to avoid.

Another judgment worth mentioning is the FAMILIAPRESS case (1997),111_{which is}

particularly interesting as it extended the scope of mandatory requirements to the protection of fundamental rights by finding that measures cannot be contrary to fundamental rights and freedoms,112 thus making the protection of fundamental rights a mandatory requirement. Such a case has evidently raised difficulties for the CJEU, as we can see through the decision. The matter at hand concerned the Austrian prohibition of the sale of periodical newspapers and magazines containing games and competition for prizes. As a result, importing MS had to alter their content, which was held to constitute a hindrance to the freedom of goods. Indeed, since the prohibition pertained to the actual content of the product, the Court held that it was a measure

107

Ibid., shown by the choice of the words ‘must therefore’.

108_{Ibid., para. 12.} 109_{Ibid., para. 17.} 110

Ibid., para. 21.

111_{C-368/95 Vereinigte Familiapress Zeitungsverlags und vertriebs GmbH v Heinrich Bauer Verlag (hereinafter}

‘Familiapress’), available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61995CJ0368&from=FR

112_{Ibid., para. 24. ‘Furthermore, it is to be noted that where a Member State relied on overriding requirements to}

justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principle of law and in particular of fundamental rights.’

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having equivalent effect to a quantitative restriction. The Court thus had to argue whether the Austrian ban could be permitted because it was an proportionate method of pursuing the aim of preserving press diversity and whether that objective could be reached by measures less restrictive to both intra-Community trade and freedom of expression.113 The Court considered that the maintenance of press diversity constituted ‘an overriding requirement justifying a

restriction on free movement of goods’114 which thus reaffirms the importance of the compliance with the proportionality principle and emphasizes on the necessity subtest of the proportionality analysis. Moreover, it indicates that if the prohibition constitutes a barrier to the marketing of newspapers, the prohibition would be considered disproportionate115 and even adds that the prohibition does not constitute such a barrier, all the while leaving it for the national court to determine.116

The SCHMIDBERGER case 2003117 even took it a little further as it successfully raised the freedom of expression and of assembly as grounds to justify a restriction to free movement of goods because of an environmentalist protest. The case arose in proceedings between the eponymous undertaking who sought damages against the Republic of Austria as it could not transport timber from Germany to Italy as the sole transit route was closed for a consecutive four days. Schmidberger held that this amounted to a failure on the Austrian authorities’ part to ban the demonstration, which lead to a restriction of the freedom of goods. The Court here went through a detailed analysis as the two interests in question – free movement of goods on the one hand and freedom of expression and of assembly on the other – are both fundamental principles guaranteed by the Treaty for the first one and by the European Convention on Human Rights for the latter one. As such, it was important for the Court to make sure a fair balance was struck

113_{Ibid., para. 27.} 114

Ibid., para. 18. ‘Maintenance of press diversity may constitute an overriding requirement justifying a restriction

on free movement of goods. Such diversity helps to safeguard freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which is one of the fundamental rights guaranteed by the Community legal order.’

115_{Ibid., para. 28. ‘To that end, it should be determined, first, whether newspapers which offer the chance of}

winning a prize in games, puzzles or competitions are in competition with those small press publishers who are deemed to be unable to offer comparable prizes and whom the contested legislation is intended to protect and, second, whether such a prospect of winning constitutes an incentive to purchase capable of bringing about a shift in demand.’

116

Ibid., para. 29.

117_{C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich (hereinafter}

‘Schmidberger’), available at:

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between these interests.118 To do so, the Court first established that the protest was a measure of equivalent effect to a quantitative restriction incompatible with the Treaty, unless it was objectively justified,119 which it then proceeded to analyse. The question at hand was of significant difficulty as it pertained to whether freedom of goods prevailed over the fundamental rights at stake.120 To answer that question, the Court noted that the EU and its Member States are both required to respect fundamental rights whose protection thus constitutes a legitimate that could justify a restriction of freedom of goods. 121 On the other hand, such fundamental rights are also subject to limitations.122 This means a wide margin of discretion is left with the competent authorities that are then only constrained by the principle of proportionality. Because of the delicate nature of the case, the Court constrained itself to the proportionality analysis so as not to position itself on a possible hierarchy between fundamental rights guaranteed by the ECHR and fundamental principles guaranteed by the Treaty. To do so, the CJEU reasoned analogically and compared the present case with COMMISSION v FRANCE (1997)123 to base its findings. As such, it agreed that an outright ban of the protest would have impeded too much on the fundamental rights at stake and noted that the demonstration took place per a request for authorisation before the national authorities.124 Additionally, it stated that such a manifestation is usually an inconvenience for non-participants,125_{but this should still be tolerated when the}

objective pursued is legitimate. Moreover, it noted that numerous administrative and supporting measures were taken by Austrian authorities so as to limit the disruption to the very minimum126

and thus found that the measure was proportionate.

It transpires from what precedes that the nature and scope of fundamental rights causes substantial difficulties for the CJEU. Nevertheless, we must point out that fundamental rights justifications are not unlimited.127 This has been clearly demonstrated by A.G.M.-COS.MET 118 Ibid., para. 81. 119 Ibid., para. 64. 120_{Ibid., para. 70.} 121_{Ibid., para. 74.} 122

See para. 2 of Article 10 and 11 ECHR for limits to freedom of expression and of assembly.

123_{C-265/95 Commission v France, available at:}

http://curia.europa.eu/juris/document/document.jsf?text=&docid=43536&pageIndex=0&doclang=EN&mode=lst&d ir=&occ=first&part=1&cid=772678 124_{C-112/00 Schmidberger, para. 84.} 125_{Ibid., para. 91.} 126 Ibid., para. 87. 127

'Public interest' requirements to free movement of goods : How proportionate is the CJEU's proportionality assessment